“Never Do Harm” means doing nothing.  Strict adherence to this tenet of the Hippocratic Oath, taken by healthcare professionals upon their admission to practice, would hamper progress and stifle innovation that could save lives and ease the suffering of countless persons in need.  Medical tools and theory must be allowed to evolve.  But how can emerging, cutting-edge technology be safely introduced into practice?  This issue was the subject of the 2012 Patient Safety Conference held Thursday, February 16, 2012 at the University of California, San Diego School of Medicine.

Maximizing Benefits and Minimizing Risks

The title and focus of the conference was “Introducing New Technologies to Patient Care: The Promise and the Peril.”  Speaker Thomas Krummel, MD, of Stanford University, set the tone for the event by emphasizing that the modern, responsible approach to “Never Do Harm” is maximizing benefits while minimizing risks to the patient.  To this end, the seminar was flush with revolutionary medical technologies and methods, carrying the promise of maximal patient benefits… and the peril of catastrophic harms, if utilized incorrectly.

Robotic Surgery Continues to Progress

Frederic Moll, MD, co-founder of seminal robotic device innovator Intuitive Surgical, Inc. and now Hansen Medical, Inc. explained the accuracy and efficiency of new robotic surgery techniques.  A technique that continues to gain ground is the use of 3D preoperative imaging to allow surgical robots to “learn” the patient’s body before a procedure.  This allows the surgeon, who formerly had the benefit of physically touching the tissue he was working with, to sit at a remote video station and control a precise robotic surgical tool, without completely losing his sense of touch, or “haptic feedback” from the patient.

The Promises and Perils of Telemedicine

Attorney Janice Mulligan of Mulligan & Banham discussed the promises and perils of “telemedicine” with Lawrence Friedman, MD and Brett Meyer, MD of UCSD.  Telemedicine, or “therapy at a distance,” allows a physician or specialist in one area of the world to examine, or even perform procedures (via robot control) upon a patient in another.

The benefits of telemedicine are stunning – the best physicians become instantly available to the patients most in need, wherever they may be.  But proper physician adaptation to this new paradigm of care is essential. Legal concerns are also paramount. Mulligan cautioned that under existing law, a doctor from one state operating on a patient in another state without proper licensing can lead to criminal charges as well as unlimited civil liability and medical licensure censure. Change in states laws to facilitate telemedicine law across state and federal borders is necessary,but it is hampered by laws designed to preserve business for doctors in the states where patients are located.

Evolving EMR Standards

Joshua Lee, MD, of UCSD lectured about the rise in prevalence of Electronic Medical Records (EMR) and the need for vigilance in EMR standards to safely and ethically realize the possibilities of this exponentially expanding data cache.  Todd Pawlicki, PhD, also of UCSD, expressed pointed criticisms of the current state of electronic data platforms in medicine, urging hospitals to demand the same information-rich but user-friendly standard from their vendors that consumers demand of tech giant Apple, Inc.

Veteran Physicians: The New Novices

The common theme throughout the presentations on Thursday was that emerging technology and treatment techniques, with all of their hopes of “maximizing benefits” for patients, threaten to run afoul of the essential second half of the modern “Never Do Harm” tenet:  “minimizing patient risks.”  As cautioned by Dr. Moll, when you change the tools, you change the risk profile of a procedure. A poignant example was the personal experience of Santiago Horgan, MD (UCSD) with the treatment of achalasia.  Dr. Horgan has had to learn and re-learn how to perform surgical treatment for this disorder four times, in four different ways, over just two decades, due to evolving methodological standards.

The disconnect between the way physicians were taught to practice in medical school, and the procedures that are now demanded of them, is more pronounced now than ever before.  Experienced, “hands-on” surgeons are being told they should sit at a computer and control their scalpels with joysticks. Patients, the consumers of medicine, demand progressive laparoscopic and robotic techniques from their doctors, which are marketed to them as safer, cheaper, and with less cosmetic consequence.  But this change of tools has the practical effect of transforming veteran surgeons into novice students.  No matter how promising a new technology may be, in the hands of the inexperienced, it can be treacherous.

Lack of Opportunities to Train

Experience is everything.  The seminar’s consensus of the solution to realizing the maximal patient benefits promised by new technology, while minimizing the peril for patients, is a simple one:  PRACTICE.  And this practice is simply not available, nor ethically appropriate, “in the field” – i.e., by operating on patients.

Christopher Kane, MD, of UCSD, explained that in the case of robotic radical prostatectomies, for example, data shows that a surgeon does not reach proficiency until around his 300th procedure.  But the average urologist performs only about twelve of these procedures a year, and is “certified” after his second proctored procedure.  Given that lack of exposure, how can a surgeon become competent, much less proficient, even over an entire career?  And what is the use of emerging technology, if through lack of experience it causes more harm than existing techniques?

Prescription: Precise Simulation

Thankfully, the conference presented more than a diagnosis of the problem; but also a prescription for it.  UCSD, already the largest and most well-equipped teaching hospital in the region, has been busy building the solution.  The new, state of the art Simulation Training Center at the UCSD School of Medicine contains multiple mock-up patient rooms, operating rooms and training mannequins, and precisely the same equipment that trainees will use in the “real world” – from the latest multi-million dollar surgical robots down to fully functioning autoclaves (for sterilization of tools used on… dummies!  That’s thorough.)

Dr. Horgan, a world class physician and pioneer in laparoscopic procedures, robotic surgery, and emerging NOTES techniques (“scarless” surgery through natural orifices), has taken on an integral, hands-on role in the development of the Center and the execution of its goals.

The richness and authenticity of this training experience promises to take a novice to near proficiency before he or she need ever attempt the procedure on a living patient.  The Center is already in use and in high demand, not just by medical students, but by physicians and health care workers from UCSD and other area hospitals.

Don’t Be Your Doctor’s Dummy

For those of us in Southern California and surrounding areas, we are extremely fortunate that UCSD’s Simulation Training Center exists.  Patients take note: this training is available.  The better physicians, surgeons and nurses are taking advantage of it.  Demand the experience and demonstrated skill that simulated training provides from your health care provider – particularly if you are considering progressive surgical technologies or techniques.

For more information, or if you or a loved one have been injured in California, please contact the experienced lawyers at Mulligan, Banham & Findley.  Our telephone number is 619-238-8700.

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On January 25, 2011, President Barack Obama raised the issue of medical malpractice reform in his State of the Union address by saying that he is “willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”

What is a frivolous lawsuit? In legal terms, a “frivolous lawsuit” is one having no legal basis or merit, often filed to harass or extort money from the defendant. Most people use the word “frivolous” to describe someone or something that is unconcerned about or lacking any serious purpose. Proponents of tort reform often argue that “frivolous” medical malpractice lawsuits increase insurance premiums for hospital and physicians, increase health care costs, and do not allow doctors to practice medicine.

This begs the questions – are there really that many “frivolous” medical malpractice lawsuits in the United States? Tort reform supporters often cite a 2006 Harvard School of Public Health Study as evidence that there are too many frivolous med mal lawsuits. Representative Lamar Smith (R-Tex), who is the ranking Republican on the House Judiciary Committee, and Darren McKinney of the American Tort Reform Association, both publicly cited the Harvard study for the proposition that 40 percent of medical malpractice suits filed in the U.S. are “without merit” or “groundless.”

It is clear that those who rely on the 2006 Harvard Study to promote the idea that “frivolous” lawsuits have a severe impact on health care didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that efforts to “curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation (emphasis added).” As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.” The most seriously injured patients are the ones whose monetary compensation is severely limited and do not receive the justice they so desperately deserve.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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On February 18, 2011, according to the Los Angeles Times, the University of Southern California Hospital halted its kidney transplants after a kidney was accidentally transplanted into the wrong patient. Luckily, the patient who received the wrong kidney escaped substantial harm and possibly death because the kidney just so happened to be an acceptable match.

According to the article, USC Hospital performs about two transplants a week, which means there are a little over a 100 kidney transplants in a given year. Dr. Goran Klintmalm, a veteran surgeon at Baylor Regional Transplant Institute in Dallas, was quoted as saying that such a mistake is almost inconceivable. “The safeguards are very substantial,” he said. “I can’t even imagine how this mistake could have happened.”

According to a 2000 study by the American Heart Association, medical errors cost tens of thousands of lives in hospitals across the United States each year – more than deaths from highway accidents, breast cancer, and AIDS combined. Studies have put the numbers of deaths at over 98,000 annually in hospitals.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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In the 1970’s, the State of Virginia capped awards in medical malpractice lawsuits at $750,000. In 2008, the cap was increased to $2 million. On February 24, 2011, according to an article in The Washington Post, the General Assembly in Virginia agreed to raise awards in medical malpractice lawsuits $50,000 each year starting in 2012. The bill calls for an increase from a cap of $2 million starting in 2012 and then $50,000 each year until 2031. The cap applies to “any verdict returned against a health care provider in an action for malpractice.”

How does this compare to the State of California? While California does not have a cap on overall damages in medical malpractice lawsuits, California does have a cap on non-economic damages for things such as pain, suffering, and loss of companionship. The Medical Injury Compensation Recovery Act of 1975, known as MICRA, sets a limit on non-economic damages at no more than $250,000 in California. This cap on non-economic damages has not changed in over 36 years!!!

Using an inflation calculator based on data from U.S. government’s Consumer Price Index (CPI), $250,000 in 1975 is equivalent to a whopping $1,023.341 in the year 2011. That’s an increase of over 300%. Or, another way of putting it, $250,000 in 2011 is equivalent to only $61,074 in 1975.

The non-economic damages cap in California is particularly unfair to young children, the elderly, the disabled, and stay-at-home parents. Basically, anyone who was not working or underemployed at the time of their injury or death. As a result of the substantial costs involved in pursuing a medical malpractice case, the cap on non-economic damages prevents many California citizens who have been harmed by a doctor or hospital, through no fault of their own, from being able to seek justice.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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In the early 1970’s, a medical insurance crisis supposedly gripped the State of California. In 1975, then (and current) Governor Jerry Brown called a special session of the California Legislature and the legislature passed the Medical Injury Compensation Recovery Act, known as MICRA. Since its enactment, California’s MICRA has been touted as a model of tort reform for the entire nation.

MICRA applies to actions (i.e. lawsuits) filed against a “health care provider” based on “professional negligence” or medical malpractice. MICRA’s most controversial element is a $250,000 cap on non-economic damages for pain & suffering, regardless of how egregious the medical negligence or how serious the injury. The $250,000 limitation on non-economic damages is not indexed for inflation. There is also a limitation on attorney contingency fees in medical malpractice cases (40 % of the first $50,000, 33.33 % of the next $50,000, 25 % of the next $500,000, and 15 % of any amount that exceeds $600,000), the statute of limitations for actions against healthcare providers was shortened by MICRA, there is a requirement that there be advance notice of claims against healthcare providers, MICRA allows for binding arbitrations, MICRA abrogates the collateral source rule, and MICRA allows for doctors to pay judgments over time.

In California, there are certain causes of actions where MICRA’s cap on non-economic damages is not applicable. The following is a list of the types of cases, that when established, can allow for greater recovery: Battery (Perry v. Shaw (2001) 88 Cal.App.4th 658), Elder Abuse and Dependent Adult Actions (see CA Welfare & Institutions Code Section 15657), Fraud, Unfair Business Practices (CA Business and Professions Code Section 17200), unlicensed health care providers (including telemedicine care) for residents by out of state health care providers (Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412) and a failure to summon medical care for a prisoner (Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106).

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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